Trump Senate Impeachment Trial Finds Scant Precedent in History
(Bloomberg) -- Bill Clinton’s impeachment two decades ago set the modern template for President Donald Trump’s upcoming trial in the Senate. But the process may be even more contentious this time given sharper tribal divisions in Washington.
Clinton’s four-week proceeding in 1999 riveted the nation. Thirteen Republican House managers marched across the Capitol to present articles of impeachment, led by the silver-maned chairman of the Judiciary Committee, Henry Hyde. An old-school grand orator, he cast Clinton’s impeachment as a matter of national honor and invoked the sacrifices of war dead.
Chief Justice William Rehnquist presided, clad in a custom robe adorned with gold stripes he had designed based on a costume from a Gilbert & Sullivan comic opera.
Monica Lewinsky, the White House intern who had an affair with the Democratic president, gave video testimony. And Arkansas Senator Dale Bumpers rebutted with a folksy drawl the managers’ argument that the case was about principle rather than merely a titillating scandal: “When you hear somebody say, ‘This is not about sex,’ it’s about sex.”
Partisan strife threatens to engulf the Senate once again as the chamber prepares a trial for two articles of impeachment against Trump, accusing him of abusing his power and blocking Congress’s investigation into that abuse.
The rancor in 1999 eventually subsided as leaders from both parties moved to contain the damage. But they were navigating political cross-currents that produced very different incentives than their counterparts face today.
Senate leaders in the Clinton trial recognized that their own interests diverged from their party allies. The Democratic White House wanted the entire process discredited as a partisan vendetta, but many Democrats were at the same time repulsed by the president’s conduct and didn’t want to defend it. Republican senators, meanwhile, were acutely aware of GOP losses in the midterm House election, held in the middle of the process and widely seen as a repudiation of the drive to impeach the president.
This time there’s little sign that Senate Republicans feel the need to distance themselves from the White House. Trump holds a firmer grasp over his party than Clinton did -- the biggest political threat to Republican incumbents is primary challengers, not Democrats.
Unlike the last impeachment, Trump is almost certain to lead the national Republican ticket again in 2020, tying the fortunes of lower-level office-holders more closely to his standing. Underscoring the point, Senate Majority Leader Mitch McConnell has openly declared he’s coordinating with the president’s lawyers to set procedures for the trial. And precedent isn’t binding on McConnell.
“He has a lot of latitude,” said Trent Lott, the Republican Senate majority leader during the Clinton trial. “There is nobody who knows the rules of the Senate like Mitch McConnell. He also knows this is a different time, a different set of facts.”
Like It or Not
The day after the House passed the articles of impeachment against Clinton, Lott picked up the phone at his home in Pascagoula, Mississippi, and called his Democratic counterpart, South Dakota Senator Tom Daschle.
“I remember very vividly,” Lott said in an interview. “I said, ‘Tom, whether we like it or not, this issue is in our lap.’”
The Constitution imposes only a few requirements for a presidential impeachment. The Senate has to have a trial. The chief justice must preside. And it takes a two-thirds vote to convict.
Senate rules don’t even set a standard of evidence for conviction, unlike criminal trials in which a defendant must be proven guilty beyond a reasonable doubt. Senators only must swear to dispense “impartial justice.”
Since Richard Nixon resigned before he was formally impeached, the only precedent before Clinton was Andrew Johnson’s impeachment trial in 1868.
Johnson’s trial lasted almost two months as orators showed off their speaking skills to packed galleries. The Senate heard from 25 prosecution and 16 defense witnesses. Lawyers for Johnson, who was known for intemperate public remarks, persuaded him not to appear at the proceeding. He was instead defended by a team of attorneys, but still gave press interviews during the trial. He avoided conviction by one vote.
Lott had good reason for caution. The Clinton impeachment battle in the House had already dragged down two Republican leaders and sullied another. House Speaker Newt Gingrich quit after the fall election losses. His presumptive successor, Bob Livingston, announced his resignation the day of the impeachment vote after it was disclosed that he’d had multiple extramarital affairs. And Hyde, an anti-abortion crusader and renowned champion of conservative morality, was humiliated by the revelation that he had an affair with a married beauty stylist when he was in his 40s.
The tawdry sexual details that Kenneth Starr, the independent counsel who led the investigation into Clinton, included in his report to Congress also provoked a public backlash, and Clinton’s popularity soared to an all-time high around the time of the impeachment vote.
From the start, Lott was determined not to risk live testimony on the Senate floor, especially from Lewinsky. The fear was that it could veer into sexual details that would alienate the public or make it look like Republican lawmakers were ganging up on a vulnerable young woman.
“The greatest danger is that you lose control of it,” Lott said. “Where does it stop?”
Despite the partisan firestorm, Democratic leaders were wary of appearing to excuse Clinton’s conduct. One adviser remembers fearing that five or six Democratic senators could vote for conviction and potentially build momentum to bring more along.
But both sides also had partisan bases clamoring for an all-out fight at the trial. The House impeachment managers were demanding a long trial, with witnesses called to the Senate floor. The prospects for an agreement on procedures didn’t look good.
“We both thought it was going to be uphill given how much of a partisan fight it turned out to be in the House,” Daschle said in an interview. “I think people were probably betting against us initially.”
At one point, Lott reached an agreement with Daschle for a short trial with no witnesses, only to be rebuffed by Senate conservatives.
“Some of my friends did everything but stone me and throw me out on the street,” Lott recalled.
Ultimately, the leaders and their staffs prepared the way for a unanimous agreement on trial procedures, finalized in a closed-door session in the Old Senate Chamber. It skirted the issue of witnesses until later, initially giving each side 24 hours on the floor to make their cases. Senators then were allowed to pose questions to each side, sending them up in writing for the chief justice to read aloud.
Robert Byrd of West Virginia, one of the Democrats the president’s team had been most worried about losing, moved to dismiss the case after the initial phase. Though the move failed on a largely party line vote, it showed Clinton wasn’t in danger.
The House impeachment managers won a vote to take videotaped depositions from Lewinsky, Clinton’s friend Vernon Jordan, and White House aide Sidney Blumenthal. They were allowed to play excerpts to the Senate. But the testimony didn’t change the dynamic.
When the senators voted one by one, neither of the two articles of impeachment won a majority, much less the two-thirds required.
“It was a tragic time, it was a difficult time, historic,” Daschle recalled. “But nonetheless, I think we were able to rise to the occasion.”
©2019 Bloomberg L.P.